January, 2001 ~ Volume 14, Issue 5
Ounce of Prevention News
Information and Ideas for Practical Problem Solving in Special Education
Return to the Articles Index Return to the Issues Index
In this issue:
A
Michigan Federal District Court Upholds a School's Right Under Section
504 to Require an Evaluation by Examiners of Its Choosing..................................1
IEPs
Must be Developed in Meetings and Must be in Writing,
the Sixth Circuit Rules..............................................................................................1
OSEP issues Guidance on Mediation.......................................................................2
FAQ's........................................................................................................................2
OSERS and OSEP Issue Misleading Guide on IDEA Discipline Provisions............5
Refusal to submit to an evaluation defeats a '504 claim because the student is not Aotherwise qualified,@ a Michigan federal district court has ruled in Schwartz v The Learning Center Academy, _____ IDELR _____ (WD MI, 2001).
The Learning Center Academy is a public school academy (charter school). The parent enrolled the student in the school in August, 1999. The parent presented letters from three doctors, which stated that the student should not attend school full-time. The parent stated that he had school phobia. The school requested records from the prior district and received a few but most were withheld by the district at the parents= request. Based on the letters, the school agreed to provide home instruction by a certified teacher for 10 hours a week while a plan for reintegration was developed.
In October, the parent requested more hours of instruction and asserted that the student was entitled to services under '504. The school continued to request records but most were still withheld. The school did learn, however, that the student had been found eligible under '504 by his prior district. The school then convened a meeting to develop a '504 plan. The team concluded that the 10 hours of home instruction should continue and a plan to reintegrate the student into the school setting should be developed rather than providing additional hours of home instruction.
The parent requested a '504 hearing. Up to this point, the school had relied on documents provided by the parent and had not evaluated the student. The hearing officer recommended that the student be evaluated. The parent initially agreed but then refused, alleging further evaluation would be detrimental to the student=s health. The hearing officer then dismissed the hearing for refusal to allow an evaluation.
In March, 2000, the parent filed suit in federal court, alleging the school violated '504 by failing to provide the student with FAPE. The complaint alleged that he needed more hours of instruction to reach grade level, the school failed to provide a substitute when the regular teacher was absent, and the student was in need of books, lab kits and other materials.
The school moved for summary judgment on the basis that, because the parent had refused an evaluation, there was no showing that the student was a qualified handicapped person entitled to services under '504 and that, in any event, it had not violated '504 because any additional instruction should be provided in an integrated, school setting; it had made a legitimate educational policy decision to have the teacher make up missed time, rather than provide a substitute; and no books, lab kits or other materials had been denied the student on the basis of the disability.
The federal district court assumed, without actually deciding the issue, that school or social phobia is a handicap under '504. The court observed that, under '504, the school was required to evaluate all students who are handicapped or suspected of being handicapped to determine the existence of and extent of their handicap and was allowed to conduct the evaluation with persons of its own choosing. The court expressly ruled that Ano exception to an evaluation requirement exists when a party alleges that an examination will be physically or mentally harmful.@ The court held that because the student had not submitted to an evaluation by the school, he was not an Aotherwise qualified@ handicapped person and was not entitled to the protection of '504. The court granted summary judgment to the school on the evaluation issue and did not reach the other issues.
Implications:
It has been quite clear for some time that a parental refusal to submit their child to an evaluation will defeat a claim for services under IDEA and that there is no exception to the evaluation requirement because the evaluation will allegedly be detrimental to the health of the child. See, e.g., Andress v Cleveland Indep Sch Dist, 22 IDELR 1134 (5th Cir., 1995). Although logically the same conclusion should be reached under '504, only one reported federal district court case, from Utah, had previously addressed the issue.
In this case, a Michigan federal court has squarely held that a refusal to submit a child to evaluation by the district defeats a '504 claim. The Court elaborated on its conclusion by observing that schools are not required to design individualized programs for students simply because they allege they are handicapped. If parents wish to take advantage of '504, they must first allow the school to determine whether they are entitled to do so. Courts are increasingly recognizing that parents also have obligations under '504 and IDEA and are refusing to fault the school when the parents= actions have interfered with or frustrated the school=s efforts to comply.
IEPs Must be Developed in Meetings and Must Be in Writing, the Sixth Circuit Rules
A school district=s prolonged failure to develop an IEP denied FAPE for the student and entitled the parents to seek reimbursement for a unilateral private placement, the Sixth Circuit held in Knable v Bexley City Sch. Dist., 34 IDELR 1 (6th Cir., 2001).
The student attended a private school until fifth grade. He began exhibiting behavior problems in first grade and received therapy. In fourth grade, he was diagnosed with ADHD, oppositional defiant disorder and dysthymia. In June, he was hospitalized because of his aggressive behavior at home.
He attended the public schools the next year as a regular education student but exhibited disruptive behavior. At the beginning of sixth grade, the district began the special education evaluation process. On September 30, the parents consented to evaluation. On November 22, the evaluation team met and recommended eligibility for a Severe Behavior Handicap (SBH). The parents and district staff met on December 8 to discuss the evaluation and possible placement options. The district recommended an SBH program outside the district. The parents indicated they had doubts about the program but would consider it and inquired about an IEP.
On December 13, the student was again hospitalized. The next day, the parents and district staff met again. The parents advised that the proposed placement was not acceptable and noted that the student did not have an IEP. The student continued in day treatment at the hospital until February 23. He then returned to school in a regular education placement but with a behavior plan. He continued to be disrespectful and disruptive and failed three of his seven classes.
The parents and school staff met on April 6 and June 8 to discuss his behavior and placement. No IEP was ever developed but the district promised to work on one over the summer. In July, district officials met with the hospital staff to discuss possible placements.
Meanwhile, the parents had been exploring possible residential placements. On August 17, they applied for enrollment in a private residential program. On August 18, they again requested an IEP. The district responded that it was considering a placement and asked the parents to visit it. They did. They then met with district staff and expressed concern about the short length of the school day and the fact they would be billed $80 a day for therapy. They inquired about the district paying for a private residential placement.
On August 30, without holding a meeting, the district faxed the parents a Adraft IEP@ for the previously discussed placement. The parents then enrolled the student in the private residential placement. He attended there for two years and did very well.
The parents requested a due process hearing, seeking reimbursement for the private placement. The hearing officer found that no IEP meeting was convened and the proposed charge for therapy was impermissible because it would reduce the lifetime limit of the parent=s insurance coverage but the district could provide FAPE and a residential placement was not required. The hearing officer denied reimbursement. The state review officer dismissed on the basis that the parents had made a unilateral private placement without notice to the district. The federal district court ruled that the unilateral placement did not preclude reimbursement but, after reviewing the record, affirmed the hearing officer.
On appeal, the Sixth Circuit found a procedural violation of IDEA because the district never convened an IEP meeting. It rejected the district=s contention that the failure resulted from the parents= lack of cooperation and emphasized that IEPs can be developed without parental involvement if they will not cooperate. The Court found the procedural violations denied the student FAPE because the parents never had an opportunity to participate in an IEP meeting and the student had no IEP for a whole school year and was denied special education, resulting in a loss of educational opportunity.
The hearing officer and district court had found that the district had not denied FAPE because it could have provided an appropriate program in its proposed placement. The Sixth Circuit squarely rejected this approach. The Court held that an IEP must be in writing and review is limited to the terms of the IEP document itself.
As the only written document was the Adraft IEP,@ the Court reviewed that document and found it was a generalized proposal that did not satisfy IEP requirements. It did not contain present levels of performance, goals and objectives or specific special education programs and services to be provided and it was not Awithout charge@ because it proposed using the parent=s insurance coverage. Based on what was offered, rather than what might have been provided, the student=s AIEP@ did not provide FAPE.
The Court further found that the parent=s private placement was appropriate because the student made significant educational progress while there and awarded reimbursement. The Court rejected the district=s contention that the placement was inappropriate because of its cost but did hold that reimbursement was limited to Areasonable costs.@ The case was remanded to the district court for a determination of whether all of the parents= claimed costs were reasonable.
Implications:
The Sixth Circuit has held that there cannot be an IEP without there first being an IEPT meeting and that the school district has an obligation to ensure that the IEP is completed within the timelines established by the IDEA regulations and state rules. Non-cooperation of the parents is not an excuse. Nor is waiting for the parents to visit and/or tentatively agree to a proposed placement. Parents need to be aware of and consider possible options. The clear lesson, however, is that the IEP process must move forward in a timely manner and the district must not drag its feet or allow the parents to do so.
The second lesson is that the IEP document needs to be complete and needs to be the district=s Abest shot.@ Failing to put services in the IEP because they are Apart of the program@ can be fatal. If it is not in the IEP, it doesn=t count in a due process hearing. When proposing a special education program or services, be sure it is individualized and put it in the IEP.
OSEP Issues Guidance on Mediation
On November 30, 2000, the Office of Special Education Programs (OSEP) issued a guidance document relating to the 1997 IDEA amendments relating to mediation. 33 IDELR 247 (OSEP, 2000).
The memorandum is set up in a question and answer format. Twenty different questions, and OSEP=s responses, are provided to assist districts in implementing the mediation provisions of the IDEA. While many questions are left unanswered, OSEP gives a broad summary of the mediation requirements under IDEA and the process by which they are to be implemented.
OSEP points out that mediation is a voluntary process which permits parents and school districts to meet with a third party in an effort to reach consensus and resolution of disputes without resort to the more costly and time consuming due process hearing procedures. While IDEA requires that mediation be available after a due process hearing request has been made, OSEP encourages districts to offer mediation prior to formal hearing requests. Since mediation is voluntary, either party may end the mediation procedure at any stage and proceed with a due process hearing.
OSEP points out that any person who serves as a mediator may not be an employee of the school district or a state agency receiving monies under IDEA or have any personal or professional conflicts of interest. A person who acts as a mediator is not considered an employee of the school district merely because he or she is paid by the district to act as a mediator.
The state is required to maintain a list of persons who are qualified and trained as mediators in regard to special education issues. Two options are available for selecting the mediator. Either the state may appoint mediators from its list on a random basis, or the parties may mutually agree upon a mediator. Only one mediator, however, is to be used for each mediation. The mediation process is free to the parties and the cost must be borne by the state. The costs may be paid from IDEA funds.
During the mediation, each party presents his or her side to the mediator. The parties work toward compromise and consensus, devising a resolution to their own disputes. OSEP points out that mediation may also be helpful in resolving state complaints under the complaint procedures.
When entering into mediation, the parties may be required to sign a confidentiality agreement. IDEA prohibits the use of discussions at mediation as evidence in any subsequent due process hearing or civil action. The parents of a student with a disability may opt to have the child present during the mediation. Both parties have the option of being represented by counsel. However, OSEP warns that the attendance of attorneys may result in a more adversarial session.
As mediation is voluntary, neither party may require the other to participate in mediation. If an agreement is reached, however, the IDEA requires that the agreement be set forth in a written mediation agreement.
Implications:
With the recent increase in the number of due process hearing requests, mediation should be an option considered by the parties. In many instances, resolution may be effected more quickly and with less animosity and monetary cost to either party. As OSEP points out, mediation may be used to resolve issues prior to formal due process hearing requests, or to resolve complaint/compliance issues. In doing so, however, one must remember that case law is clear that attorney fees may be available to a parent who prevails through mediation. Since the mediation process typically requires both parties to compromise, it is quite likely that the parent will be considered a Aprevailing party@ in the mediation process.
Q: Does a day of in-school suspension count as a day of suspension for discipline purposes under the IDEA?
A: Maybe. Whether an in-school suspension day will be counted as a day of suspension under IDEA will turn on what programs and services the student received during the in-school suspension. The comments to the regulation indicate that an in-school suspension would not be counted as a day of suspension as long as the student has the opportunity to continue to appropriately progress in the general curriculum, continue to receive the special education services, modifications or accommodations specified in his or her IEP and continue to participate with non-disabled children to the same extent he or she would have in the current placement. See, 64 Fed. Reg. 12619 (Friday, March 12, 1999). If the student continues to receive such services, albeit in a different location, the in-school suspension would not be considered a suspension day. OCR has recently made similar rulings. In Van Independent School District, 33 IDELR 196 (OCR 2000) a parent claimed that a district disciplined a student without convening the required manifestation determination review meeting. In its investigation, OCR determined that since the student continued to receive the accommodations and modifications set forth in his plan there was no requirement to conduct an MDR prior to placing a student in an in-school suspension.
If on the other hand the student does not receive the services set forth in his or her IEP, does not have access to the general curriculum or does not have contact with non-disabling peers, an in school suspension would be considered a suspension day.
In school suspension programs such as a AResponsibility Thinking Room@ typically would be considered suspensions since many times these programs are not staffed by certified teachers, do not have the same level of special education support and do not focus on instruction in the general curriculum.
OSERS and OSEP Issue Misleading Guide on IDEA Discipline Provisions
The Office of Special Education and Rehabilitation Services and the Office of Special Education recently issued a guidance document entitled APrevention Research and the IDEA Discipline Provisions: A Guide for School Administrators.@ The document is intended to be a guide for general school administrators. Its primary emphasis is encouraging use of positive behavior interventions and supports but it does also discuss permissible discipline for students with disabilities. A copy of the guide is available at: www.ed.gov/offices/OSERS/OSEP/adminbeh.web.pdf.
Unfortunately, in an apparent attempt to be brief, in discussing Awhat the law allows,@ the guide is too brief and is misleading in several of its statements. The guide states:
ASchool personnel can remove a student with a disability for 10 consecutive school days or less at a time for a violation of the school code of conduct (to the same extent applied to children without disabilities). School personnel can immediately remove for up to 10 consecutive school days or less, the same child for separate incidences of misconduct.@
The second sentence is incomplete because students can only be suspended for additional periods exceeding 10 cumulative school days in a school year without being afforded a manifestation determination review and other procedural safeguards if the series of suspensions do not constitute a pattern of removals. ASeparate incidences of misconduct@ may be part of a pattern so that a further removal would be a change in placement.
The guide also states:
AIf school personnel believe that a child is dangerous to him or herself or others, they can ask a hearing officer in an expedited due process hearing to remove a student to an interim alternative educational setting for up to 45 days.@
and
ASchool personnel can always ask a court for a temporary restraining order in order to protect children or adults from harmful behaviors.@
These statements grossly oversimplify the so-called Adangerousness@ exception. The actual criterion is not that the student is Adangerous@ or engaging in Aharmful behaviors.@ Rather, it is that Amaintaining the current placement of the child is substantially likely to result in injury to the child or to others.@ To invoke the exception, the district must show that the current placement is appropriate, it has made reasonable efforts to minimize the risk of harm in the current placement, and the proposed alternative setting will enable the student to continue to progress in the general curriculum, continue to receive services and modifications to meet the goals in the student=s IEP, and address the behavior to prevent it from recurring. In practice, it is very difficult to obtain an order from a hearing officer or court under the Adangerousness@ exception.
Finally, the guide states:
ASchool personnel can remove a child with a disability, including suspending or expelling for behavior that is not a manifestation of the child=s disability, to the same extent as is done for children without disabilities, for the same behavior.@
Again, the statement is incomplete and inaccurate. A child with a disability cannot be removed from the current placement for more than 10 consecutive school days or for any period that results in a change in placement without a manifestation determination review being held. The guide makes no mention of the need to review the behavior intervention plan or develop a functional behavioral assessment plan if the student is removed for more than 10 days. Perhaps most important, the guide does not discuss the obligation to provide educational services during periods of suspension or expulsion.
Implications:
OSERS and OSEP have been criticized in the past for often refusing to provide technical assistance and guidance. This guide may illustrate that those refusals were not necessarily a bad thing. Bad guidance is surely worse than no guidance.
This guidance is intended for and likely to be cited by general administrators, who may not react well when told that the federal department=s guidance is wrong or, at best, incomplete. Nonetheless, it is and district administrators should be advised that they cannot rely on the statements in the guide in administering discipline to students with disabilities.